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Federal Register 

# Presidential Documents

Vol. 65, No. 218 Thursday, November 9, 2000

Title 3- Executive Order 13175 ofNovember 6, 2000


### The President Consultation and Coordination With IndianTribal Governments

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish regular and meaningful consultation and collaboration with tribal officials in the development ofFederal policies that have tribal implications, to strengthen the United States government-to-government relationships withIndian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes; itishereby ordered asfollows: Section 1.Definitions.Forpurposes ofthis order: (a) "Policies that have tribal implications" refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government andIndian tribes. (b) "Indian tribe" means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary oftheInterior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe ListAct of1994,25 U.S.C.479a. (c) "Agency" means any authority ofthe United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as definedin44U.S.C. 3502(5). (d) "Tribal officials" means elected or duly appointed officials of Indian tribal governments orauthorized intertribal organizations. Sec. 2. FundamentalPrinciples.In formulating or implementing policies that have tribal implications, agencies shall be guided by the following fundamental principles: (a) The United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under itsprotection. The Federal Government has enacted numerous statutes and promulgated numerous regulations that establish and define
atrustrelationship withIndian tribes. (b) Our Nation, under the law of the United States, in accordance with treaties, statutes, Executive Orders, and judicial decisions, has recognized the right ofIndian tribes to self-government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory. The United States continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights. (c) TheUnited States recognizes theright ofIndian tribesto self-government and supportstribal sovereignty and self-determination. Sec. 3. Policymaking Criteria.In addition to adhering to the fundamental principles set forthin section 2,agencies shall adhere, to the extent permitted by law,to the following criteriawhen formulating and implementing policies that havetribal implications:

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(a) Agencies shall respect Indian tribal self-government and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from theunique legal relationship between theFederal Government andIndian tribal governments. (b)With respect to Federal statutes and regulations administered by Indian tribal governments, the Federal Government shall grant Indian tribal governments themaximum administrative discretion possible. (c) Whenundertaking to formulate and implement policies thathave tribal implications, agencies shall: (1) encourage Indian tribes to develop their own policies to achieve program objectives; (2)where possible, defer to Indiantribes toestablish standards; and (3) in determining whether to establish Federal standards, consult with tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve the prerogatives and authority ofIndian tribes. Sec. 4. SpecialRequirementsfor LegislativeProposals.Agencies shall not submitto the Congress legislation thatwouldbe inconsistent withthepolicymaking criteria inSection 3. Sec. 5. Consultation. (a) Each agency shall have an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications. Within 30 days after the effective date of this order, the head of each agency shall designate
an official with principal responsibility for the agency's implementation ofthis order. Within 60 days ofthe effective date ofthis order, the designated official shall submit to the Office of Management and Budget (OMB) a description ofthe agency's consultation process. (b)Tothe extentpracticable and permitted bylaw, no agency shall promulgate any regulation that has tribal implications, that imposes substantial direct compliance costs onIndian tribal governments, andthat is notrequired by statute,unless: (1) funds necessary to pay the direct costs incurred by the Indian tribal government or the tribe in complying with the regulation are provided bythe Federal Government; or (2)the agency,priorto theformal promulgation ofthe regulation, (A) consulted with tribal officials early in the process of developing the proposed regulation; (B) in a separately identified portion of the preamble to the regulation
as it is to be issued in the Federal Register, provides to the Director of OMB a tribal summary impact statement, which consists of a description ofthe extent ofthe agency'sprior consultation withtribal officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement ofthe extent to which the
concerns oftribal officials havebeenmet; and (C) makes available to the Director of OMB any written communications submittedto theagencybytribal officials.

(c) Tothe extent practicable and permittedby law, noagency shall promulgate any regulation that has tribal implications and that preempts tribal law unless the agency, prior to the formal promulgation of the regulation, (1) consulted with tribal officials early in the process of developing the proposed regulation; (2) in a separately identified portion of the preamble to the regulation
as it is to be issued in the Federal Register, provides to the Director of OMB a tribal summary impact statement, which consists of a description ofthe extent ofthe agency'sprior consultation withtribal officials, a summary of the nature of their concerns and the agency's position supporting the

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need to issue the regulation, and a statement ofthe extent to which the
concerns oftribal officials havebeenmet; and (3) makes available to the Director of OMB any written communications submittedto theagencybytribal officials.

(d) On issues relating to tribal self-government, tribal trust resources, or Indian tribal treaty and other rights, each agency should explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiatedrulemaking. Sec.6. Increasing Flexibility forIndianTribalWaivers. (a) Agencies shall review the processes under which Indian tribes apply for waivers of statutory and regulatory requirements and take appropriate steps tostreamline those processes.

(b) Each agency shall, to the extent practicable and permitted by law, consider any application by an Indian tribe for a waiver of statutory or regulatory requirements in connection with any program administered by the agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the Indian tribal level in cases in which the proposed waiver is consistent with the applicable Federal policy objectives andis otherwise appropriate. (c) Each agency shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 days of receipt of such application bythe agency, or as otherwise provided by law or regulation. Ifthe application for waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefor. (d) This section applies only to statutory or regulatory requirements that

are discretionary and subjectto waiver bytheagency. Sec.7.Accountability. (a) In transmitting any draft final regulation that has tribal implications to OMB pursuant to Executive Order 12866 of September 30, 1993, each agency shall include a certification from the official designated to ensure compliance with this order stating that the requirements ofthis order have been metinameaningful andtimelymanner. (b) In transmitting proposed legislation that has tribal implications to OMB, each agency shall include a certification from the official designated to ensure compliance with this order that all relevant requirements of this orderhavebeenmet. (c) Within 180 days after the effective date of this order the Director of OMB and the Assistant to the President for Intergovernmental Affairs shall confer with tribal officials to ensure that this order is being properly and effectivelyimplemented. Sec. 8. IndependentAgencies. Independent regulatory agencies are encouragedto complywiththeprovisions ofthis order.
Sec. 9. GeneralProvisions.(a)This order shall supplement but not supersede the requirements contained in Executive Order 12866 (Regulatory Planning and Review), Executive Order 12988 (Civil Justice Reform), OMB Circular A-19, and the Executive Memorandum of April 29, 1994, on Governmentto-Government Relations withNative American Tribal Governments. (b) This order shall complement the consultation and waiver provisions in sections 6 and 7 ofExecutive Order 13132 (Federalism). (c) Executive Order 13084 (Consultation and Coordination with Indian Tribal Governments) is revokedatthe timethis order takes effect. (d) This order shall be effective 60 days after the date of this order. 67251

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Sec. 10. JudicialReview.This order is intended only to improve the internal management of the executive branch, and is not intended to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law by a party against the United States, its agencies, or any person.

THE WHITE HOUSE, November 6, 2000.

[FR Doec. 00-29003 Filed 11-8-00; 8:45 am] Billing code 3195-01-P

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